Howard J. Bashman's appellate columns, etc.

An archive of Howard J. Bashman's monthly columns about appellate litigation, with other of his writings thrown in for good measure

Monday, July 10, 2006

Report Card from the U.S. Supreme Court: How the Third Circuit Fared in the October 2005 Term

By Howard J. BashmanMonday, July 10, 2006

The Supreme Court of the United States, in its just-completed Term, issued a total of 69 signed opinions in argued cases. Three of those cases reached the Supreme Court directly from the 3rd U.S. Circuit Court of Appeals, and in all three instances the 3rd Circuit suffered reversals.

Happily, the 3rd Circuit did not receive only bad news from the Supreme Court this Term. Not only did one of the 3rd Circuit's own judges, Samuel A. Alito Jr., join the Supreme Court in late January 2006, but the 3rd Circuit's jurisprudence fared much better when it was implicated in circuit splits presented in cases arising from other federal appellate courts.

The Supreme Court in ten other cases noted that it was resolving conflicts that involved the 3rd Circuit. In seven of those cases, the Supreme Court approved of the 3rd Circuit's approach, while in the remaining three cases, the Supreme Court disagreed with the 3rd Circuit's approach.

The most newsworthy 3rd Circuit reversal of this past Term came on March 6, 2006, when the Supreme Court announced its unanimous ruling in Rumsfeld v. Forum for Academic and Institutional Rights, Inc. The Court, in a ruling by Chief Justice John G. Roberts Jr., held that the federal law known as the Solomon Amendment did not violate the First Amendment freedoms of speech and association of law schools.

That federal law conditions the availability of federal funds to universities on a requirement that military recruiters have the same sort of on–campus access to law students as other employers, even though the military is unable to sign a pledge required of other employers renouncing discrimination in hiring on the basis of sexual orientation.

The decision that the Supreme Court reversed was written by Judge Thomas L. Ambro and joined in by Judge Walter K. Stapleton. Judge Ruggero J. Aldisert had dissented from the 3rd Circuit's decision in the case.

Rumsfeld v. FAIR was not the only First Amendment–related reversal that the 3rd Circuit suffered at the hand of the Supreme Court last Term. On the second to last opinion issuance day of the Term, the Supreme Court announced its ruling in Beard v. Banks. By a vote of 6–2, the Court rejected a constitutional challenge to a Pennsylvania state prison policy of denying to the most dangerous and recalcitrant inmates any access to newspapers, magazines, and photographs.

In so ruling, the Supreme Court reversed a decision that 3rd Circuit Judge Julio M. Fuentes had written and in which Judge Max Rosenn had joined. Although Alito did not participate in that ruling at the Supreme Court, he was on the 3rd Circuit panel, where he dissented from the panel's result.

The final case in which the 3rd Circuit suffered a reversal involved, of all things, a Federal Tort Claims Act suit by a woman who claims she was injured when she tripped and fell over mail that an employee of the U.S. Postal Service had left on her porch. In Dolan v. U.S. Postal Service, the Supreme Court ruled by a margin of 7–1 that the 3rd Circuit had erred in dismissing that suit as barred by an exception to the Tort Claims Act's waiver of sovereign immunity.

The decision that the Supreme Court reversed, which had dismissed the injured woman's claim against the Postal Service, was written by Judge Jane R. Roth and was joined in by Chief Judge Anthony J. Scirica and Judge Theodore A. McKee.

Although the 3rd Circuit suffered reversals in all three cases in which the Supreme Court directly reviewed its work, the 3rd Circuit fared much better in cases arising from other federal appellate courts presenting conflicts that implicated 3rd Circuit rulings.

In Woodford v. Ngo, where Justice Alito delivered the majority opinion, the Supreme Court ruled by a margin of 6–3 that the Prison Litigation Reform Act of 1995 requires state prison inmates to properly exhaust administrative remedies before filing in federal court any suit challenging prison conditions. In so ruling, the Supreme Court sided with the 3rd Circuit's approach in Spruill v. Gillis, a decision that Judge Edward R. Becker wrote and in which Judges Alito and Michael Chertoff joined.

In Fernandez-Vargas v. Gonzales, the Court by a vote of 8–1 rejected an argument that it would be impermissibly retroactive to apply a particular federal immigration law requiring deportation in that case to those immigrants who had reentered the United States before the law's enactment. In so ruling, the Supreme Court approved of a 3rd Circuit ruling from 2003 written by Circuit Judge Maryanne Trump Barry, in which Chief Judge Scirica and Circuit Judge D. Brooks Smith had joined.

In Empire HealthChoice Assurance, Inc. v. McVeigh, the Court ruled by a vote of 5–4 that when an insurance company that paid benefits in accordance with the Federal Employees Health Benefits Act sues to obtain reimbursement from a beneficiary's tort recovery, the insurance company's suit does not arise under federal law and therefore must be litigated in state court. In so ruling, the Supreme Court agreed with a 3rd Circuit ruling from 1994 written by Circuit Judge Morton I. Greenberg, in which Judge Stapleton and a visiting federal district judge from Florida joined.

In Jones v. Flowers, the Supreme Court ruled 5–3 that when mailed notice of a tax sale of a home is returned unclaimed, a State must take additional reasonable steps to attempt to provide notice to the property owner before selling his property, if it is practicable to do so. The majority opinion cited with approval a 3rd Circuit ruling from 2001 written by Circuit Judge Joseph F. Weis Jr., in which Judge Ambro joined. Circuit Judge Dolores K. Sloviter had dissented from that ruling.

In Day v. McDonough, the Court by a vote of 5–4 upheld the dismissal of an untimely–filed habeas corpus petition even though the State opposing the habeas petition had failed to raise the statute of limitations defense in the answer it filed in federal district court. In allowing a federal district court to excuse a State's waiver of a statute of limitations defense, the Court cited with approval a 3rd Circuit ruling from 2004 written by Circuit Judge Becker, in which Chief Judge Scirica and Circuit Judge D. Michael Fisher joined.

In United States v. Grubbs, the Supreme Court by a vote of 8–0 rejected a challenge to anticipatory search warrants. Justice Antonin Scalia's opinion for the Court cited with approval a 3rd Circuit decision from 1999 that was written by a federal district judge visiting from New York, in which Circuit Judges Sloviter and Carol Los Mansmann joined.

In Arbaugh v. Y&H Corp., the Supreme Court held 8–0 that Title VII's requirement that an employer have 15 or more employees in order to be covered under that federal law is not a requirement that, if unsatisfied, deprives a federal district court of subject matter jurisdiction. The 3rd Circuit, in a decision from 2003, reached the same result. Judge Ambro wrote that ruling, in which Circuit Judges Richard L. Nygaard and Roth joined.

In Burlington, Northern & Santa Fe Railway Co. v. White, the Supreme Court resolved a dispute over the scope of Title VII's anti–retaliation provision. The decision notes that the 3rd Circuit was among those federal appellate courts which had required that the challenged action must result in an adverse effect on the terms, conditions, or benefits of employment. By a vote of 8–1, the Supreme Court rejected the 3rd Circuit's approach. Judge Alito had written the 3rd Circuit's decision from 1997, in which Circuit Judges Greenberg and Robert E. Cowen had joined. Therefore, perhaps it was not surprising that Justice Alito was the lone member of the Supreme Court to endorse the 3rd Circuit's approach as correct.

In Marshall v. Marshall, the case better known as the Anna Nicole Smith probate battle, a unanimous Supreme Court clarified the scope of the so–called "probate exception" to federal court jurisdiction. The Supreme Court's ruling notes that the 3rd Circuit adopted too expansive of a view of the probate exception's scope in a decision from 2004 written by Judge Chertoff, in which Judge Alito and visiting U.S. District Judge Dickinson R. Debevoise had joined.

Finally, in Schaffer v. Weast, the Supreme Court held by a vote of 6–2 that the burden of persuasion in an administrative hearing challenging an individualized education program that a school district has issued pursuant to the Individuals with Disabilities Education Act is properly placed upon the party seeking relief, whether that is the disabled child or the school district. In so ruling, the Supreme Court disagreed with a 3rd Circuit decision from 1993 that always placed the burden of persuasion on the school district. Judge Becker wrote that 3rd Circuit decision, in which Judges Greenberg and Weis joined.

To summarize, although the 3rd Circuit suffered reversals in all three of the cases that reached the Supreme Court this Term on direct review, in another ten cases the Supreme Court approved of 3rd Circuit rulings seven times. Thus, the overall tally favors the 3rd Circuit this past Term, given that its rulings were approved seven times and disapproved only six times.